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owing by him at the time he became a bankrupt; even though
judgment shall have been obtained against him, and he lies
in prison upon execution for such debts; and, for that among
other purposes, all proceedings on commissions of bankrupt
are, on petition, to be entered of record, as a perpetual bar
against actions to be commenced on this account: though,
in general, the production of the certificate properly allowed
shall be sufficient evidence of all previous proceedings? (22). [ 484 1
Thus the bankrupt becomes a clear man again ; and, by the
assistance of his allowance and his own industry, may become
a useful member of the commonwealth : which is the rather
to be expected, as he cannot be entitled to these benefits, un-
less his failures have been owing to misfortunes, rather than
to misconduct and extravagance (23).

z Stat. 5 Geo. II. c. 30.

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(22) That is, in an action brought against the bankrupt for a
debt due before the bankruptcy, unless the plaintif can prove a
concealment by the bankrupt to the amount of 101., or that the
certificate was obtained by fraud. 5 Geo. II. c. 30..8.

(23) The bankrupt is discharged by his certificate from all debts
which could have been proved under the commission, but he is still
liable to make a reparation in damages for all torts of injuries done
by him before the bankruptcy; for these could not be proved, as
the extent of the damages must be ascertained by a jury. Hence
also he is not discharged from any breach of covenant; and even
where he covenants for payment of rent, although the lease and
premises are disposed of by the allignees for the benefit of the cre-
ditors, the bankrupt still remains liable to be sued by the landlord
upon his covenant. 47. R. 94. This is a hard case, for the land-
lord has his remedy also against the tenant in possession. The bank-
rupt is not discharged from any contingent debts, where the cantin.
gency happens after the bankruptcy : these are debts which origi.
nate from something done previous to the bankruptcy, but which
become absolutely debts at some period subsequent to it. As when
one man is furety for another, the principal is not indebted to the
furety till his surety is obliged to pay the debt for him. There.
fore if this does not happen till after the bankruptcy, the surety can.
not prove his debt under the commission; and of consequence, the
bankrupt is not discharged by the certificate. But it is determined
Vol. II. .
PP

that,

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For n10 allowance or indemnity shall be given to a bankrupt, unless his certificate be signed and allowed, as beforementioned ; and also, if any creditor produces a fictitious debt, and the bankrupt does not make discovery of it, but suffers the fair creditors to be impofed upon, he lofes all title to these advantages?. Neither can he claim them, if he has

a Stat. 24 Geo. II. c. 57.

that, if the principal gives the furety an absolute unconditional bond as an indemnity, he may prove it under the commission, though he has never been called upon to pay the debt of the principal. 27. R. 640. Yet in such a case it must be presumed that the surety would be restrained from receiving under the dividend more than he had actually been compelled to pay, or from receiving any thing at all till he was actually damnified. In analogy to the contingent debts of fureties, I conceive two cases have lately been determined, one in the common pleas upon a bill of exchange, H. Bl. Rep. 640: the other in the king's bench upon a promissory note, 4 T. R. 7!4. In each cafe the payee was obliged to take back the bill or note, and to pay the value of it after the bankruptcy of the drawer; against whom he afterwards broughtan adion, who pleaded his bankruptcy and certif. Cate in bar; but the courts held in the respective cases, that the bankrupt was not discharged by the certificate. But in both these cases it may be collected from the reports, that they were merely accommodation billi, that the payees had given no value before the bankruptcy, that they had lent their names merely as sureties, and of consequence, that the bankrupt was not indebted to them till they had been obliged to pay the amount of these bills. This circumstance is so flightly stated in each report, particularly in the latter, as to induce many readers to suppole that no indorser, who is obliged to take back a bill or note after the bankruptcy of the drawer or aeceptor, can prove it ander his commission. But I apprehend the courts never intended to say that a holder of a bill, who has given full value for it before the bankruptcy of the draweror acceptor, and is obliged to take it back after his bankrupicy, cannot prove it under the commission; a debt is due to him before the bankruptcy, which cannot be affected or disturbed by the subsequent allignment and re-assignment of the bill. It has been determined, that the allignment relates to the original debi, and the allignee ttands in his place. Ccoke, 2;. Hence an ir

dorfce without notice, after the ifiuing of the commiifiov, ought to ; be admitted to prove, and have relief under the commission.

given with any of his children above 1001, fur á marriage
portion, unless he had at that time sufficient left to pay all
his debts; or if he has lost at any one time 5la or in the
whole rool, within a twelvemonth before he became bank-
rupt, by any manner of gaming or wagering whatsoever; or
within the same time has lost to the value of 100l. by stock-
jobbing. Also to prevent the too common practice of fre-
quent and fraudulent or careless breaking, a mark is set upon
such as have been once cleared by a commillion of bankrupt,
or have compounded with their creditors, or have been deli-
vered by an act of insolvency: which is an occasional act,
frequently passed by the legislature : whereby all persons
whatsoever, who are either in too low a way of dealing to
become bankrupts, or not being in a mercantile state of life,
are not included within the laws of bankruptcy, are discharged
from all suits and imprisonment, upon delivering up all their
estate and effects to their creditors upon oath, at the sessions
or allizes ; in which case their perjury or fraud is usually, as
in case of bankrupts, punished with death. Persons who have
been once cleared by any of these methods, and afterwards
become bankrupts again, unless they pay full fifteen shillings
in the pound, are only thereby indemnified as to the confine-
ment of their bodies ; but any future estate they shall ac-
quire remains liable to their creditors, excepting their necef-
fary apparel, household goods, and the tools and implements [ -483 )
of their trades (21).

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Thus much for the proceedings on a commission of bank. rupt, so far as they affect the bankrupt himself personally. · Let us next consider,

o Scat. 5 Geo. II. c. 30.

(24) If they do not pay fifteen shillings in the pound under the second commiflion, the fecond certificate is no bar to an action or execution against their future effects. 5 T. R. 287.

P p 2

4. Home

4. How fuch proceedings affect or transfer the effate and property of the bankrupt. The method whereby a real estate, ni lands, tenements, and hereditaments, may be transferred by bankruptcy, was shewn under it's proper head in a former chapters. At present therefore we are only to consider the transfer of things perfonal by this operation of law.

By virtue of the statutes before-mentioned d all the personal estate and effects of the bankrupt are considered as vested, by the act of bankruptcy, in the future assignees of his commis. sioners, whether they be goods in actual poffeffion, or debts, contracts, and other choses in action ; and the commissioners by their warrant may cause any house or tenement of the bankrupt to be broken open, in order to enter upon and feile the same. And when the assignees are chosen or approved by the creditors, the commissioners are to aflign every thing over to them; and the property of every part of the estate is thereby as fully vested in them, as it was in the bankrupt himself, and they have the same remedies to recover it (25).

THE property vested in the assignees is the whole that the bankrupt had in himself, at the time he committed the first act of bankruptcy, or that has been vested in him since, before his debts are satisfied or agreed for. Therefore it is usually faid, that once a bankrupt, and always a bankrupt : by which is meant, that a plain direct act of bankruptcy once

e 12 Mod. 324.

< pag. 285.
d Sul. 1 Jac. I. c. 15. 21 Jac. I. c. 19.

(25) And it has been decided after much serious argument, that the assignment of the commissioners conveys the bankrupt's personal property and interests, which are out of the kingdom at the time of bankruptcy and assignment. 47. R. 182.

And by the assignment the property is so completely vested is the assignees, that the bankrupt is not entitled to receive from his estate even the necessary subsistence of himself and family, but by the favour and indulgence of the assignces and creditors. 1 T. R.157.

committed

committed cannot be purged, or explained away, by any sub-
sequent conduct, as a dubious equivocal act may bef (26); but
that, if a commission is afterwards awarded, the commission
and the property of the assignees shall have a relation, or re-
ference, back to the first and original act of bankruptcy . [ 486 )
Infomuch that all transactions of the bankrupt are from that
time absolutely null and void, either with regard to the alien-
ation of his property, or the receipt of his debts from such
as are privy to his bankruptcy; for they are no longer his
property, or his debts, but those of the future asignees. And,
if an execution be fued out, but not served and executed on the
bankrupt's effects, till after the act of bankruptcy, it is void
as against the assignees. But the king is not bound by this
fictitious relation, nor is within the statutes of bankrupts";
for if, after the act of bankruptcy committed and before the
assignment of his effects, an extent issues for the debt of the
crown, the goods are bound thereby :(27). In France this doc-

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* Salk. 110.
8 4 Burt. 32.

Di Atk. 262.
| Viner. Abr. t. creditor and banks. 104.

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(26) The court of king's bench have gone so far in holding that .a clear unequivocal act of bankruptcy cannot be wiped away by any subsequent conduct, as to decide, that if a merchant is denied in a morning, when a holder of a bill comes for payment, it is an irrevocable act of bankruptcy, even though he should pay the bill in the course of that day, before it could be protested, or he could be sued upon it. 2 T. R. 59. This is a severe case; and it has rather the appearance of a petitio principii to pronounce it an unequivocal act of bankruptcy. A denial is not of itself an act of bankruptcy, but only evidence of one; viz. a beginning to keep house with intext to defraud and hinder creditors; and where a debtor prevents his creditor from being hindered for a moment after he has a right to demand payment, ought we not in candous and justice to presume that he never had that intent ? Indeed, in such a case it is not improbable that the denial was merely for the pur. pose of procuring the means of discharging the debt.

(27) The king not being expressly named in the bankrupt statutes, is held not to be bound by them, 2 Str. 982; and therefore

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